1. ' Briefly stated facts of the case out of which this Regular Second Appeal has arisen are that land measuring 198 Kanals 18 Marlas situate in revenue estate of Chak No,232/TDA, Tehsil Karor, District Leiah was purchased by respondents Nos. 1 and 2 vide registered sale-deed dated 4-8-1973. Mst.
2. Nazir Begum appellant as well as Ghulam Hussain respondent No,3 filed two rival pre-emption suits to pre-empt the aforementioned sale. The appellant claimed her superior right of pre-emption on the ground of being collateral of the vendor and also as being owner in the estate whereas respondent No,3, rival pre-emptor claimed superior pre-emptive right on the qualification of being owner in the estate. Both the suits were consolidated and having been contested learned trial Court vide judgment and decree dated 13-2-1979 held that Mst. Nazir Begum having proved that she is an heir of the vendor is entitled to the grant of first decree whereas respondent No,3 who has proved himself to be owner in the estate, is entitled to the second decree in his favour, in case the appellant failed to deposit' pre-emption money. This judgment and decree was appealed against by respondent No,3 alone. Vendees did not challenge the decree. Learned Additional District Judge, Muzaffargarh vide remand order dated 28-4-1982 remanded the case back to the learned Civil Judge for determination of entitlement of the rival pre-emptors inter se in terms of section 17(c) of Punjab Pre-emption Act, on the ground that Mst. Nazir Begum appellant has not proved herself to be an heir of the vendor and that she is also an owner in the estate hence, her qualification is equal to the qualification of respondent No,3 which has been held to be an owner in the estate. Therefore, after recording of evidence and determination of respective shares of the parties in the land in question the suit shall be decided accordingly. In post-remand proceedings, learned trial Court allowed many opportunities to the parties to lead evidence but no evidence was produced.
3. Resultantly, the evidence of the parties was closed and vide judgment and decree dated 5-6-1983 distributed the land in question in equal shares amongst the appellant and respondent No,3.
4. Learned trial Court, however, held that although respondent No,3 is not proved to be an owner in the estate by any documentary evidence yet as in the remand order he has been held to be entitled to a share in the land in question, hence he is also entitled to the grant of decree in his favour. This judgment and decree passed by learned trial Court has been appealed against by the appellant alone. It has not been challenged by either of the respondents who are the vendees and rival pre-emptor. Learned Additional District Judge Leiah vide judgment and decree dated 13-12- 1983 dismissed the appeal filed by the appellant and also dismissed her suit holding that she has not been able to prove that she is either collateral or an owner in the estate. Therefore, she is not entitled to the grant of any decree in her favour. Resultantly, her suit has also been dismissed in her appeal. Learned Additional District Judge while discussing the qualification of the appellant as being owner in the estate has referred to document Exh.P2 and treating it to be a deed of grant, has held that status of the appellant is that of a tenant and not that of an owner in the estate.
5. Learned Additional District Judge, however, has presumed that the appellant did not fulfil the condition 9(b) which was necessary for acquiring rights of ownership in the land in question. It may be mentioned here that it is nobody's case that the appellant is not the owner in the estate and it has rather been held in the remand order that she is owner in the estate and this is the finding which was rendered even by the learned trial Court in pre-remand and post-remand proceedings.
6. Regarding document Exh.P3 which proved ownership of the appellant. Learned Additional District Judge has held that as the name of the estate written in the document is Mojgarh and not Chak No,232/TDA, therefore, it cannot be said that she is the owner in the estate where the land is situate.
7. It may be mentioned here, it is nobody's case that the estate of village Mojgarh is different than that of Chak No,232/TDA. Regarding the status of respondent No,3 as being not owner in the estate, learned Additional District Judge held that as the vendees have not challenged his status, therefore, the appellant who is a rival pre-emptor has no right to challenge the status of respondent No,3 as having been proved to be an owner in the estate. Judgment and decree passed by the learned trial Court as well as by the learned First Appellate Court in post-remand proceedings have been challenged in this Regular Second Appeal.
2. Mr. Mushtaq Ahmad Hashmi, learned Advocate has appeared on behalf of the appellant, whereas Mr. M.R. Khalid Malik on behalf of vendees respondents Nos.1 and 2 and Ch. Sanaul Hach Advocate has appeared on behalf of respondent No,3, the rival pre-emptor. Learned counsel for the appellant has aruged that it stands established on record from documentary as well as oral evidence that the appellant is an owner in the estate. This finding was recorded by all the Courts in pre- and post-remand proceedings. Status of the appellant has never been challenged either by the vendees or by respondent No,3. In fact decree in favour of the appellant on the basis of her qualification as being owner in the estate has not been challenged by the respondents, therefore, the learned First Appellate Court had no jurisdiction to interfere with the finding of fact recorded by the learned trial Court which has even been upheld in the earlier remand order passed by the appellate Court which is a Court of equal jurisdiction, particularly when the qualification of the appellant as being an owner in the estate had been challenged by the respondents, and therefore, the impugned order is illegal and is liable to be set aside. Learned counsel has further argued that the findings of the learned trial Court as well as the learned First Appellate Court to the effect that respondent No,3 is also an owner in the estate is incorrect and is based upon misreading of the evidence. According to the learned counsel, there is absolutely no evidence to prove that respondent No,3 is owner in the estate and therefore, no decree could have been passed in his favour, and hence the appellant is entitled to the grant of decree regarding the total land in question as was initially granted to her by the trial Court in pursuance whereof she has already deposited the total sale amount. Learned counsel for the respondents vendees have supported the appeal and has argued that he has no objection if the appeal is accepted and the total land sold is decreed in favour of the appellant. Learned counsel for respondent No,3, however, has contested this appeal. While arguing the appeal, learned counsel for respondent No,3 has admitted that there is no documentary evidence on record of this case that respondent No,3 is an owner in the estate.
8. The only argument raised by the learned counsel for respondent No,3 is that as the vendees have not challenged his status as an owner in the estate, the appellant who is rival pre-emptor has no locus standi to challenge his status and as such the decree passed in his favour cannot be interfered with. Regarding qualification of the appellant, learned counsel for respondent No,3 has argued that it is con ect that the appellant has proved herself to be an owner in the estate, yet the appeal filed by her has rightly been dismissed. However, after arguing the matter at some length has conceded that the suit to the extent of the share of the appellant could not have been dismissed while deciding the appeal filed by her when the decree in her favour had not been challenged by the respondents.
3. I have considered the arguments addressed by the learned counsel for both the parties and have also gone through the record. It stands established, rather admitted, that there is no documentary evidence on record to prove that respondent No,3 is an owner in the estate wherein the land in dispute is situate. Merely because in the earlier round of litigation, the case was remanded does not prove that respondent No,3 becomes an owner in the estate. It is notable that the learned trial Court while passing the order after remand of the case by the Appellate Court has categorically held that there is absolutely no evidence on record to prove that respondent No,3 is an owner in the estate. The only reason on the basis whereof he has passed a decree in favour of respondent No,3, is that the case had been remanded by the Appellate Court in his favour and therefore, a decree was passed in favour of respondent No,3 as well. Learned counsel for respondent No,3 also conceded that there is no evidence to prove that respondent No,3 is an owner in the estate. In view of the above factual position, I hold that respondent No,3 has not been able to prove that he is owner in the estate and the learned Additional District Judge just brushed aside this aspect of the matter by not deciding this question and therefore, has committed a serious error of law. Consequently, I hold that respondent No,3 is not an owner in the estate and therefore, he does not possess superior right of pre-emption qua the respondents Nos.1 and 2 and the appellant. Hence his suit is liable to be dismissed. So far as the appellant is concerned, it stands established on record by documentary as well as oral evidence that the appellant is owner in the estate. The findings of facts recorded by the Courts below in pre- and post-remand proceedings have illegaly been set aside by the learned Additional District Judge on the basis of surmises and conjectures. It is nobody's case that the appellant has not fulfilled the conditions of grant, and hence has not become an owner in the estate. Similarly it is nobody's case that the land which is reflected in document Exh.13 is situate in a different estate. An estate described in the Jamabandi may differently be described with reference to the Chak and therefore, unless and until an evidence to the contrary, it cannot be said that the land claimed by a person to be situated in the relevant estate is situated in another estate. Moreso, when the status of the appellant as owner of the estate has not been challenged by the respondents, which status has been held to have been proved by the learned trial Court as well as in the remand order passed by the learned Additional District Judge which is a Court of equal jurisdiction. Resultantly, the finding of the learned Additional District Judge on the issue with regard to the superior right of pre emption of the appellant is set aside and it is held that the appellant has a superior right of pre-emption qua the respondents and as such is entitled to the grant of decree of the whole of the land in dispute. Resultantly, this R.S.A. is accepted. The impugned judgments and decree are set aside and suit of the appellant is decreed regarding total suit land on the payment of Rs,42,390, which amount is admitted to have been deposited by the appellant in Court. Therefore, it is not necessary to fix a fresh date for deposit of the pre-emption money. Suit filed by the respondent No,3 is dismissed. Parties are left to bear their own costs.